Decision No. 14,694

Appeal of D.M. and M.M. on behalf of their son T.M., from action of the Board of Education of the Sewanhaka Central High School District regarding academic placement.

Decision No. 14,694

(February 26, 2002)

Douglas E. Libby, Esq., attorney for respondent

MILLS, Commissioner.--Petitioners challenge the decision of the Board of Education of the Sewanhaka Central High School District ("respondent") to assign their son to Regents rather than advanced classes in eighth grade. The appeal must be dismissed.

T.M. was previously assigned to advanced classes in the seventh grade at respondent"s H. Frank Carey High School during the 2000-2001 school year. His guidance counselor states that she met with T.M. and his mother on November 1, 2000 and informed them that he needed to maintain an 85 average to remain in advanced courses.

T.M. received final grades of 80 in Advanced English, 85 in Advanced Social Studies, 80 in Advanced Math and 80 in Advanced Science. He scored 65 on his final math exam and 78 on his final science exam. On or about June 27, 2001 his guidance counselor telephoned his mother and reported that he would be assigned to Regents classes the following year because he had failed to maintain an average of 85 in his academic classes.

Petitioners asked the school guidance chairperson to assign their son to advanced courses for eighth grade. She declined. Petitioners then appealed to the interim principal. He deferred decision to the incoming principal. Petitioners appealed to the new principal on or about July 2, 2001 and, when he declined to change T.M."s assignment, appealed to respondent"s superintendent. The superintendent found that the determination to assign T.M. to Regents courses was educationally appropriate. This appeal was commenced on August 9, 2001, and petitioners" request for interim relief was denied on August 22, 2001. On or about August 24, 2001, petitioners asked respondent to review the superintendent"s decision. Respondent affirmed the decision on August 28.

Petitioners allege that they were not advised that T.M. was required to maintain an 85 average to remain in advanced courses until it was too late for them to take steps to ensure that he met the requirement. They suggest that respondent made this information available to parents selectively. Petitioners contend that T.M. was permitted to take both art and band courses in the fall and that no one suggested he was overextended or was not meeting his academic obligations. They also assert that T.M. was subjected to abuse by his peers during the 2000-2001 school year, that school officials failed to remedy the situation and that the abuse affected T.M."s grades. Finally, petitioners contend that T.M."s assignment to Regents classes is inconsistent with respondent"s written policy and regulations and therefore is arbitrary. They seek an order directing respondent to place T.M. in advanced courses for the eighth grade and to publish the placement requirements in a way that makes the information equally available to all parents.

This appeal must be dismissed as moot. The Commissioner of Education will decide only matters in actual controversy and will not render a decision upon a state of facts which no longer exists or a controversy which subsequent events have laid to rest (Appeal of Martin, 41 Ed Dept Rep __, Decision No. 14,605; Appeal of June D., 38 id. 596, Decision No. 14,101). This is especially true when petitioner has sought interim relief as to all or most of his claim and that relief has been denied (Appeal of Martin, supra). Petitioners" request for an interim order directing respondent to place T.M. in advanced classes was denied. T.M. is now more than halfway through the eighth grade and cannot be transferred to advanced courses at this time.

Even if the appeal had not become moot, I would dismiss it on the merits. Pursuant to Education Law "1709(3), boards of education have broad authority to prescribe the course of study by which pupils shall be graded and classified and to regulate the admission of pupils and their transfer from one class or department to another as their scholarship warrants. Consistent with that authority, boards have the power to place students in particular classes (Appeal of Dawn H., 39 Ed Dept Rep 635, Decision No. 14,336; Appeal of Julio I., 39 id. 509, Decision No. 14,295; Appeal of Reid, 32 id. 587, Decision No. 12,922). The Commissioner will not substitute his judgment for that of a board of education with respect to student placement, absent evidence that the board has acted in an illegal, arbitrary or capricious manner (Appeal of Dawn H., supra; Appeal of Julio I., supra).

A stated principle of respondent"s Policy 5121 governing student placement is that students be assigned to subject areas based on the level of their competency. The policy is implemented by Administrative Regulation 5121, which governs the placement of students in Advanced Placement, Advanced, Regents, Regents Preparation and Remedial courses. The regulation states that grades 7 and 8 will be organized in Advanced and Regents classes in English, social studies, foreign language, math and science and that "[a]ll students will be in either advanced (A) or (R) classes through June of the 8th grade for the purpose of positive socialization and opportunities for academic growth." Petitioners" assertion that the provision bars changing a student's assignment between seventh and eighth grades is erroneous. The regulation expressly provides that "[t]he placement of all students will be subject to revision, adjustment and correction as needed."

For initial placement into advanced courses, the regulation requires a student to meet three of the following four criteria:

Consistent classroom achievement above 85.

I.Q. of 120 or better.

Achievement test scores in the 90th percentile or better.

Teacher statements which indicate the student as having demonstrated a superior degree of interest, aptitude and motivation.

Apparently a determination was made that T.M. met three of these four criteria when he advanced from sixth to seventh grade. Respondent states that it applies these same criteria in determining whether a student should remain in an advanced course.

T.M. did not consistently perform above 85 in his classes. Indeed, he did not receive a final grade above 85 in any of the core academic subjects. His Advanced Social Studies grade was just 85. All of his other final core academic grades were lower. Moreover, he received a 65 on his final math exam and a 78 on his final science exam. Petitioners" assertion that T.M."s grades were affected by bullying and that school officials did not respond to his complaints is not supported by the record.

It is not clear from the record whether respondent considered the criteria for initial placement into advanced courses other than grades when it decided whether T.M. should continue to take advanced classes in eighth grade. However, respondent"s policy and regulation provide for the placement of students in accordance with their level of competence and indicates that student placement will be subject to change as needed. While the standards used to assess competence could have been stated more clearly, I cannot find that it was arbitrary for respondent to assign this student to Regents courses rather than advanced courses in light of his performance.